S.J.C. Judgment of Disbarment entered by Justice Ireland on February 23, 2009.1

SUMMARY2

This matter came before the Court on an affidavit of resignation submitted by the respondent to the Board of Bar Overseers under S.J.C. Rule 4:01, ß 15, in January 2009. Formal disciplinary proceedings were then pending against the respondent on a twoĖcount petition for discipline. The respondent acknowledged in his affidavit of resignation that the material facts on which the petition for discipline was predicated could be proved by a preponderance of the evidence and that the board and the Court would conclude that he had committed the material acts of misconduct alleged in the petition, as follows.

Count I. The respondent was admitted to the Massachusetts bar in December 2002. In the spring of 2003, the respondent began practicing in a firm started by another lawyer and became a signatory on the firmís IOLTA account.

In September 2004, the respondent represented a client in the clientís sale of real estate, was entrusted with the net sale proceeds of about $184,300, and deposited the proceeds to the IOLTA account. The respondent agreed with the client to hold the sale proceeds for the clientís planned acquisition of another property. Although the respondent later realized that he might be holding the clientís funds for an extended period, he failed to transfer them to an individual account with interest paid as directed by the client.

During the fall of 2004, the client entered into an agreement for his cash purchase of the new property. That property was encumbered by a mortgage given by the seller in the principal amount of $225,000. The client agreed to cover the sellerís mortgage payments pending the closing. The respondent undertook to represent the client in the purchase, to make the monthly payments on the sellerís mortgage until the closing from the funds he held for the client, and, upon the closing, to apply the clientís remaining funds to pay off the mortgage.

In November 2004, the client entrusted the respondent with another $13,000 in connection with the planned acquisition. The respondent deposited those funds to the IOLTA account, bringing the total held for the client to about $197,300. Between November 2004 and the spring of 2005, the respondent disbursed about $7,200 for mortgage payments and other purposes related to the planned acquisition.

In or before March 2005, the client entrusted the respondent with additional funds of about $35,000 needed to pay off the sellerís mortgage. The respondent failed to deposit those funds to a trust account and intentionally misused them for his own purposes.

In late March 2005, the respondent represented the client in the purchase of the new property. The deed for the conveyance was recorded in April 2005, at which time about $224,900 was owed on the sellerís mortgage. The clientís funds in the IOLTA account then totaled about $190,100. Due to his conversion of the clientís $35,000 payment, the respondent had insufficient funds available to pay off the mortgage.

In June 2005, the respondent issued and sent an IOLTA check for $224,973.84 to the sellerís mortgagee as a purported mortgage payoff. That disbursement created a negative balance with respect to the clientís funds. When he sent the check, the respondent knew that there were insufficient funds of the clientís in the IOLTA account to cover it. The check was dishonored for insufficient funds.

From the spring of 2005 through December 2005, the respondent disbursed about $11,800 from the IOLTA account to cover the sellerís monthly mortgage payments. During the same period, the respondent intentionally misused at least about $64,000 of the clientís funds with the intent to deprive the rightful owner of the funds at least temporarily and with actual deprivation resulting.

In or before January 2006, the client made demand on the respondent to restore his funds and pay off the sellerís mortgage. By then, the clientís funds in the IOLTA account had been reduced to about $112,100. The respondent remitted those funds to the sellerís mortgagee. The client paid the balance due on the mortgage from his own funds and obtained a discharge. At the conclusion of the representation, the respondent failed to account to the client for his application and disposition of the clientís funds. He did not make restitution of the converted funds.

The respondentís conversion of the clientís funds violated Mass. R. Prof. C. 8.4(c). The respondentís failure to hold the funds in an individual account with the interest payable as directed by the client violated Mass. R. Prof. C. 1.15(e)(5). The respondentís failure promptly to pay off and discharge the sellerís mortgage violated Mass. R. Prof. C. 1.2(a), 1.3 and 1.15(c). His failure to deposit and maintain all funds held for the client in a trust account violated Mass. R. Prof. C. 1.15(b)(1) and (e)(5).

The respondentís issuance of the mortgage payoff check when he knew that there were insufficient funds in the IOLTA account to cover the check and his creation of a negative balance with respect to the clientís funds violated Mass. R. Prof. C. 1.15(f)(1)(c) and 8.4(c). His failure to account for his application and disposition of the funds violated Mass. R. Prof. C. 1.15(d)(1).

Count II. In July 2005, bar counsel received a bank notice of the dishonor of the mortgage payoff check and started an investigation. Between July 2005 and January 2006, the respondent failed without good cause to respond to bar counselís requests for information regarding the dishonored check, the IOLTA account, and the transactions described in Count I.

In February 2006, the respondent was administratively suspended from practice in the Commonwealth, pursuant to S.J.C. Rule 4:01, ß 3(2), for failure without good cause to cooperate in bar counselís investigation. He did not seek reinstatement. In March, 2006, the respondent became subject to provisions of the suspension order and S.J.C. Rule 4:01, ß 17, requiring him, among other things, to file with the Court and bar counsel an affidavit of his compliance with the order. The respondent never filed an affidavit of compliance.

The respondentís failure without good cause to cooperate with bar counsel and failure to comply in full with the order for his administrative suspension violated Mass. R. Prof. C. 8.1(b) and 8(4)(d) and (g), and S.J.C. Rule 4:01, ßß 3.1 and 17(5) and (6).

The Board of Bar Overseers voted to recommend that the respondentís affidavit of resignation be accepted and that the respondent be disbarred. By a judgment entered on February 23, 2009, the Court accepted the resignation and disbarred the respondent effective immediately upon entry of the judgment.

FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.